* IN THE HIGH COURT OF DELHI AT NEW DELHI
RSA No. 21/2007
Date of Decision : 3 -10-2008
USHAK KAAL COMMUNICATIONS LTD. & ANR. ...... Appellant
Through Mr. Sunil Bagai, Advocate
versus
THOMSON PRESS INDIA LTD. ...... Respondent
Through: Mr.Manish K Verma Advocate
CORAM:
HON'BLE MISS JUSTICE REKHA SHARMA
1. Whether the reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported in the „Digest‟? Yes
REKHA SHARMA, J.
Appellant No. 1 and the respondent are the companies
incorporated under the Companies Act, 1956. The former does the
business of advertisement and the latter of printing .
On July 24, 1996, appellant No. 1 had placed upon the
respondent, purchase order for printing of brochures. As per the
respondent, the said purchase order was varied from time to time and
in terms of the varied order, the requisite quantity of brochures were
delivered to the appellant. The respondent claimed that in addition to
the printing of brochures, it had also carried out for the appellant the
work of scanning, planning, proofing of Mescos Floaters, Retailers Ad,
Studio Janak Ad and Diwan Saheb Press Ad. The respondent had
raised four invoices upon the appellant bearing No. (i) 97-98/2556
RSA No. 21 of 2007 Page 1 of 6
dated April 23, 1997, (ii) 96/1381 dated September 30, 1996, (iii)
96/1421 dated October 31, 1996 and (iv) 97-98/2358 dated October
21, 1997 of a total value of Rs. 1,46,070/-. The appellant company
declined to pay the aforesaid amount whereupon the respondent filed
a suit against appellant No. 1 and also against its Director – appellant
No. 2 for the recovery of Rs. 1,88,566.37 with pendente lite and future
interest @ 21% per annum.
The appellants disputed their liability to pay the suit
amount on the ground that time was the essence of the contract and
that the respondent had delivered the brochures after the delivery
period resulting in huge losses to it. The appellant also alleged that
the brochures were not printed as per the order and specifications.
Insofar as the work of scanning, planning and proofing of Mescos
Floaters – Retailers Ad was concerned, the appellant denied having
placed any such order upon the respondent. The learned Civil Judge
on the basis of evidence on record decreed the suit of the respondent
for a sum of Rs. 1,88,566.37 with pendente-lite and future interest @
6% per annum till the recovery of decretal amount along with the cost
of the suit. Aggrieved by the decree so passed, the appellants
preferred an appeal before an Additional District Judge but with no
success. Hence, the present appeal.
The main plank on which learned counsel for the appellants
assailed the judgment and decree of the courts below was that they
committed an error in accepting the certificate of incorporation of the
respondent company Ex.PW1/1 without formal proof. It was also
argued that the courts below failed to appreciate that the resolution
dated August 29, 1998 exhibited as Ex.PW1/2 authorizing an officer of
RSA No. 21 of 2007 Page 2 of 6
the respondent company to file the suit was not proved by producing
minutes books of the company and, therefore, the suit ought to have
been dismissed both on the ground of respondent having failed to
prove the certificate of incorporation and the resolution dated August
29, 1998.
The respondent, on the other hand, contended that the
appellants did not raise any objection as to the mode of proof of either
the certificate of incorporation Ex.PW1/1 or the resolution Ex.PW2/2
before the learned Civil Judge. These objections were raised for the
first time before the learned Additional District Judge who it was further
contended ought not to have entertained the same being beyond
pleadings. Having said so, learned counsel for the respondent
nonetheless dealt with the objections raised by the appellants as to the
admissibility of the certificate of incorporation and the resolution dated
August 29, 1998. It was submitted that the appellants themselves had
admitted these documents at the stage of „admission/denial of
documents‟ and it was only then that the certificate of incorporation
was exhibited as Ex.PW1/1 and the resolution as Ex.PW1/2. Hence, no
evidence was required to prove these documents.
At the outset it may be noticed that it is a matter of record
that the appellants never raised any dispute as to the mode of proof of
documents Ex.PW1/1 and Ex.PW1/2 before the trial court. Therefore, it
was not open to them to have raised the same before the first
Appellate Court. However, since the first Appellate Court has
elaborately dealt with the same, I also feel inclined to deal with the
question raised.
RSA No. 21 of 2007 Page 3 of 6
It is elementary that evidence whether oral or
documentary is led only if the parties are at issues with each other. It
is laid down in Order 14 Rule 1 “that issues arises when a material
proposition of fact or law is affirmed by one party and denied by the
other.” There is no need nor requirement to lead evidence if one party
accepts the document of another or admits a fact stated by the other.
Here in the present case, the certificate of incorporation and the
resolution dated November 29, 1998 filed by the respondent were
admitted by the appellants at the time of „admission/denial of the
documents.‟ Therefore, the parties were not at issue with each other
in so far as these two documents were concerned. Hence, there was
no need to lead any formal evidence to prove the documents.
It will be apposite here to refer to a judgment of the Apex court
titled R.V.E.Venkatachala Gounder v. A.V.& V.P. Temple reported in AIR
2003 Supreme Court 4548. The following paragraph is relevant in so
far as the present case is concerned. It reads as under:-
—————————————————————————–
Ordinarily an objection to the admissibility of evidence
should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in evidence
may be classified into two classes:- (i) an objection that the
document which is sought to be proved is itself inadmissible
in evidence; and (ii) where the objection does not dispute
the admissibility of document in evidence but is directed
towards the mode of proof alleging the same to be irregular
or insufficient. In the first case, merely because a document
has been marked as „an exhibit‟ an objection as to its
admissibility is not excluded and is available to be raised
even at a later stage or even in appeal or revision. In the
latter case, the objection should be taken before the
evidence is tendered and once the document has been
admitted in evidence and marked as an exhibit, the
objection that it should not have been admitted in evidence
or the mode adopted for proving the document is irregular
cannot be allowed to be raised at any stage subsequent to
the marking of the document as an exhibit. The latter
proposition is a rule of fair play. The crucial test is whether
an objection, if taken at the appropriate point of time wouldRSA No. 21 of 2007 Page 4 of 6
have enabled the party tendering the evidence to cure the
defect and resort to such mode of proof as would be
regular. The omission to object becomes fatal because by
this failure the party entitled to object allows the party
tendering the evidence to act on an assumption that the
opposite party is not serious about the mode of proof.
Reference may also be made to a judgment of Division Bench of
this court in the case of Alacs Finanz Ltd. v. M/s Oksh
Technologies reported in 119(2005) Delhi Law Times 585 (DB)
wherein it has held that where secondary evidence is admitted
without there being a proper objection, it becomes primary.
In view of the aforementioned judgments particularly the
judgment of the Apex Court (Supra) there is no merit in the contention
raised by learned counsel for the appellant. As already noticed above
in the present case no objection was taken as to the mode of proof of
documents Ext.PW1/1 & PW1/2 before the trial court.
Learned counsel for the appellant had relied upon Escorts
Limited v. Sai Autos & Ors. reported in 42(1990) Delhi Law Times
446. The judgment has no applicability to the facts of the present
case. It may be stated even at the risk of repetition that in the present
case the appellant themselves had admitted the documents and,
therefore, no formal proof was required to further prove the same
whereas there was no such admission in the case cited by learned
counsel for the appellant.
Insofar as the merits of the case are concerned, I find that
both the courts below have carefully appreciated the evidence on
record and have consequently held the appellants liable to pay the suit
amount. I find no reason to disturb the concurrent findings of the
RSA No. 21 of 2007 Page 5 of 6
courts below based on appreciation of evidence. The appeal raises no
question of law much less substantial question of law. There is no
merit in the appeal. The same is dismissed.
REKHA SHARMA, J.
OCTOBER 3, 2008
G/sl/
RSA No. 21 of 2007 Page 6 of 6